Brodsky v. Philadelphia

• Decision Date: 07 May 1917
• Docket Number: 202-1916
• Citation: 66 Pa.Super. 467
• Parties: Brodsky v. Philadelphia, Appellant
• Court: Pennsylvania Superior Court

66 Pa.Super. 467

Brodsky v. Philadelphia, Appellant

No. 202-1916

Superior Court of Pennsylvania

May 7, 1917

Argued November 3, 1916

Appeal by defendant, from judgment of C.P. No. 4, Philadelphia Co.-1914, No. 3598, on verdict for plaintiff in case of Fannie Brodsky and Morris Brodsky v. City of Philadelphia.

Trespass to recover damages for personal injuries. Before Audenried P. J.

The accident happened on November 18, 1913, at the corner of Twentieth street and Catherine street in the City of Philadelphia.

Verdict and judgment for Fannie Brodsky for $ 500 and for Morris Brodsky for $ 350. Defendant appealed.

Error assigned was in refusing binding instructions for defendant.

Affirmed.

Frederick Beyer, with him Albert S. Henry, Assistant City Solicitor and John P. Connelly, City Solicitor, for appellant.

Victor Frey, with him Augustus Trask Ashton, for appellee.

Before Orlady, P. J., Porter, Head, Kephart, Trexler and Williams JJ.

OPINION

HEAD, J.

The plaintiff sued to recover damages for personal injuries alleged to have been sustained by falling into a depression or hole in the sidewalk of a street of the defendant city. There was evidence tending to show the defect in the sidewalk was of such an extent and character that the failure to repair it after notice would clearly be an absence of due and reasonable care. There was also evidence that condition had existed for a number of months and thus the city would be visited with constructive notice of the fact. There was no denial that plaintiff fell on the street and suffered the injury complained of. The city does not, in this appeal, contend the verdict establishing its negligence was without support in the evidence. It pins its faith to the proposition the learned trial judge should have declared, as matter of law, the plaintiff was guilty of contributory negligence.

The following excerpt from the charge of Judge Audenried sufficiently states the facts and vindicates its own correctness: " This accident, as I recall the testimony occurred between eleven and twelve o'clock on the morning of November 18, 1913. It was a clear day, the sun was shining brightly. This break in the street into which Mrs. Brodsky says she got her foot was of considerable size. I think she said it was caused by the displacement of four or five bricks, and, she said, it was, she thinks, four or five inches in depth. A defect of that magnitude...